Madam, – The Bill of Rights, which has been referred to in the course of the debate, is in fact the Charter of Fundamental Rights of the European Union adopted on December 12th, 2007 at Strasbourg. Under Article 6 of the Lisbon Treaty, that charter will have the same legal value as the EU Treaties. But Article 6 and the charter itself lays down strict limitations as to its scope and interpretation, for example:
(a) the charter provisions are applicable, “with due regard to the principle of subsidiarity”, to the Union (and its institutions and bodies) and the member-states, “only when they are implementing Union law”.
(b) the Charter does “not extend the field of application of Union law beyond the powers of the Union . . . as defined in the Treaties”.
(c) as the Charter “recognises the fundamental rights as they result from the constitutional traditions common to the member-states, those rights” must “be interpreted in harmony with those traditions”.
(d) full account must “be taken of national laws and practices as specific in the Charter”.
(e) Nothing in the Charter can be “ interpreted as restricting or adversely affecting” human rights as recognised in their application” by inter alia “member states’ Constitutions”.
These limitations are, also, referred to (Article 52.7) in the “explanations drawn up as a way of providing guidance in the interpretation of the Charter” which say: “as regards the member-states, it follows unambiguously from the case-law of the Court of Justice that the requirement to respect fundamental rights defined in a Union context is only binding on the Member State when they act in scope of Union law” i.e. only when the Member States “implement Community rules”.
Public health is a matter of Union law and is dealt with in Title XIV of the Lisbon Treaty. But the Union’s role is limited to “complementing national policies” and in that context being “directed towards improving public health” with specific mention of “the fight against major health scourges, by promoting research into their causes, their transition and their prevention as well as health information and education and monitoring early warning of and combating serious cross-border threats to health”. Thus, action at the Union level is strictly limited by the principle of subsidiarity, which means that action at Union level is justifiable only when “the objectives of the proposed action cannot be sufficiently achieved by the Member States either at central level or regional or local level” (Article 5 of Lisbon Treaty).
Various States have also, stressed these limitations of the scope of the Charter. There is the Czech Declaration (No. 11) which says that the Charter “does not diminish the field of application of national law and does not restrain any current powers of the national authorities in this field” and that “in so far as the Charter recognises fundamental rights and principles as they result from Constitutional traditions common to member states, those rights and principles are to be interpreted in harmony with those traditions” and, also, the Polish Declaration (No 61) which says that “the Charter does not affect in any way the right of member-states to legislate in the sphere of public morality, family law as well as the protection of human dignity and respect for human physical and moral integrity”.
There are, of course, also, the Irish Protocol to the Maastricht Treaty on abortion and a Maltese Protocol in similar terms (Act of Accession, April 16th, 2003).
The European Convention of Human Rights (European Convention for the Protection of Human Rights and Fundamental Freedoms) will, also, be acceded to by the European Union. That Convention was finalised in 1950 under Council of Europe auspices, before the European Common Market – the precursor of the EU – came into existence, and all of the EU member states are parties to it. But, there again, that accession will not “affect the Union’s competences as defined in the Treaties” ie, it will be limited in the same way as the Charter and apply only when Union law is being implemented.
– Yours, etc,
DAVID NOBLE, Clarinda Terrace, Dun Laoghaire, Co Dublin.